Court File and Parties

COURT FILE NO.: CV-19-00628159-0000 DATE: 20220211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOAN SCOURAKIS, Plaintiff AND: KELLY MATIJCIO AND ROYAL LEPAGE TERREQUITY REALTY, Defendants

BEFORE: J. WILSON J.

COUNSEL: Shawn Pulver and Satinder Brar, for the Plaintiff David M. Israel, for the Defendant, Royal LePage Terrequity Realty Kelly Matijcio, Self-Represented Defendant, No one appeared

HEARD: February 9, 2022

Endorsement

[1] The Plaintiff brings this motion for summary judgment for the return of the deposit in the amount of $20,000.00 presently held by Royal Lepage, plus accrued interest for an aborted real estate transaction for the purchase of 20-530 Kingston Road in Pickering (the “Pickering Property”).

[2] She also claims damages for the difference between the purchase price for the Pickering Property, which was $650,000.00 and the purchase price of the home that she purchased at 24 Andona Crescent in Scarborough (the Toronto Property) for $720,000.00, as well as the difference in the land transfer tax that she paid, and the difference in the interest rate for the mortgage on the Toronto Property.

[3] She seeks the costs of the aborted real estate transaction for the Pickering Property in the amount of $3075.75 as well as costs of this proceeding on a substantial indemnity basis.

[4] The Defendant, who now lives in Nova Scotia has notice of this motion as per the terms of the motion confirmation endorsement of Justice Myers dated December 14, 2021. She has not appeared to defend the motion.

Claim for return of the deposit and relief from forfeiture

[5] It was a term of the Agreement of Purchase and Sale dated June 28, 2019 for the purchase of the Pickering Property that it was conditional upon an inspection and for the Plaintiff to obtaining financing.

[6] The defendant did allow the appraiser to inspect the Pickering Property but would not allow him access to the attic. The Plaintiff’s lender would not agree to the financing without an appraisal confirming the value and an inspection of the attic.

[7] It was a term of the Amended Agreement of Purchase and Sale dated July 8, 2019 for the Pickering Property that the Plaintiff would have access to the Pickering Property to inspect the attic. Notwithstanding this term negotiated with the lawyers in the Amended Agreement of Purchase and Sale there were issues getting an appointment to view the home. The Defendant was not at the home at the appointed hour for the inspection on August 8, 2019.

[8] On the adjourned scheduled closing date of August 13, 2019, the lawyer for the Defendant tendered upon the Plaintiff, taking the position that the Plaintiff was in breach of the agreement. The Plaintiff could not close as she did not have her financing in place due to her inability to fully inspect the Property.

[9] The Plaintiff’s lawyer in writing claimed the return of her deposit so she could purchase another property (see Ex.” T” of the Plaintiff’s affidavit).

[10] The lawyer for the Defendant offered, notwithstanding the tender, to schedule a further closing date three days hence, with the opportunity for the Plaintiff to have the appraiser inspect the attic. (See Ex. “U” of the Plaintiff’s affidavit).

[11] The Plaintiff declined this offer. A further offer was made August 19, 2019 that the Defendant was prepared to revive the agreement if the Plaintiff acted immediately. (See Ex. Z of Plaintiff’s affidavit).

[12] On August 17, 2019 the Plaintiff entered into the agreement to purchase the Toronto Property.

[13] The Defendant relisted the Pickering Property for sale for $675,000.00. It sold in January 2020 for slightly in excess of $700,000.00.

[14] The lawyer for the Defendant refused to return the deposit. In the Defendant’s Statement of Defence prepared by her former counsel the Defendant claims she is entitled to retain the deposit.

[15] The Defendant is now self- represented and is not responding to these proceedings.

[16] Royal Lepage awaits the Court’s determination as to entitlement to the deposit and takes no position on the issue.

[17] It appears from the facts as pleaded that the Defendant was in breach of the Amended Agreement of Purchase and Sale by not being present to allow access to the Pickering Property for the inspection as agreed. It also appears that it is arguable that the breach may have been cured by the offer notwithstanding the tender to extend the closing date and allow the inspection.

[18] The Defendant relisted the Pickering Property for $675,000.00 and sold the property in January 2020 for just over $700,000.00. She did not suffer damage as a result of the aborted sale to the Plaintiff. To the contrary, it appears that she benefited. The Defendant was a real estate agent. One wonders whether her refusal for the inspection may have been linked to a concern that she had undervalued the Pickering Property.

[19] Without deciding the issue of anticipatory breach and whether it may have been cured by the defendant’ subsequent offer to allow the inspection and adjourn the closing date, I exercise my inherent discretion in the facts of this case to grant relief from forfeiture and to return the deposit to the Plaintiff with all interest accrued in the trust account presently held by Royal Lepage. (See: Saskatchewan River Bungalows Ltd. v. Maritime Life Insurance Co. and Kirshenblatt v. Kriss, 2012 ONSC 6568)

[20] No costs are being claimed against Royal Lepage.

[21] I will consider the issue of costs payable by the Defendant once I consider the other heads of damage claimed by the Plaintiff.

Claim for Damages Based Upon Different Purchase Price, etc.

[22] I conclude that the claim for the difference between the purchase price for the Pickering Property, of $650,000.00 and the purchase price of the Toronto Property for $720,000.00, is not recoverable as a head of damage, assuming anticipatory breach. There is no evidence that the two properties are comparable. They are both detached homes. They are located in different cities. The agreement to purchase the Pickering Property was in June 2019. The agreement to purchase the Toronto Property was in August 2019. There is no evidence before me that even if I had found there to be anticipatory breach, that the real estate market had changed in two months.

[23] The Plaintiff entered into the Agreement of Purchase and Sale for the Toronto Property on August 17, 2019 just four days after the tender for the Pickering Property.

[24] She chose to purchase a different property, in a different city, with a different land transfer tax rates and a different price point. The differential in the tax rates between the two cities is too remote and not an appropriate head of damages.

[25] I conclude that the claim for differential interest rate is not recoverable. I note that the Plaintiff provided proof of bridge financing for the Pickering Property which was to close in August 2019. The closing of the Toronto Property took place in January 2020. I note also that the Plaintiff did not sell the home where she was residing until February 2020.

[26] There is no evidence that the Plaintiff suffered a loss in 2019 as a result of the aborted real estate transaction. Simply put, the Plaintiff wisely moved quickly and mitigated any damages arising from the aborted transaction by purchasing another property in another city for a higher purchase price. There is no evidence before me that as of today that the Plaintiff suffered a loss based upon the current fair market value of the Toronto Property, as compared to the Pickering Property.

[27] The Plaintiff’s claims for the various heads of damages, apart from the deposit is therefore dismissed.

Costs

[28] The Plaintiff seeks as damages her costs for her lawyer for the aborted real estate transaction of the Pickering Property in 2019 in the amount of $3,075.75. In my view, this is a reasonable request and should be recoverable.

[29] The Plaintiff seeks full indemnity costs in this proceeding in accordance with their Bill of Costs in the amount of $20,000.00.

[30] Although the Plaintiff has not been successful in claiming the damages for the differential in cost between the Pickering and the Toronto Properties, and the other claimed damages, it is clear that the Defendant has made every step of this proceeding difficult. She is now non responsive residing in Nova Scotia. The Defendant has not made an offer to return the deposit in the amount of $20,000.00 necessitating this motion. Without the Defendant’s consent Royal Lepage had no choice but to await the Court’s determination of entitlement to the deposit.

[31] In the circumstances and having regard to the factors outlined in Rule 58.06 of the Rules of Civil Procedure I fix costs in the amount of $14,500.00 plus HST, as well of the costs thrown away in the amount of $3075.75 for the legal fees for the aborted transaction.

Justice J. Wilson Date: February 11, 2022